Employers must address blogging

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It used to be people kept personal diaries hidden under beds or tucked in dresser drawers, but computer convenience has allowed millions of people to openly add entries online with a few keystrokes on their computer.

The relatively new method of Web logging or blogging is an online communication tool used recreationally and in business. It is the separation of the two which has caused growing concern among employers and employees.

A recent survey conducted by the Employment Law Alliance (ELA) revealed that while perhaps as much as 5 percent of the American workforce maintains online personal diaries, only about 15 percent of employers have specific policies addressing job-related blogging.

“I think employers who ignore the impact of this are just courting legal disaster,” noted Jeffrey S. Hynes, of Jeffrey S. Hynes & Associates and co-chair of the Wisconsin Employment Lawyer’s Association. “It’s so prevalent, so conspicuous right now. It’s that big elephant in the room nobody wants to talk about.”

More and more businesses are being forced to confront the issue with employees and employers alike, engaging in frequent blogging. Harassment and disclosing company information have surfaced as red flags, occasionally resulting in dismissals, but with so much gray, distinguishing the black from the white has been difficult.

Scott Beightol, a partner on the Management Committee at Michael Best & Friedrich, LLP, and ELA CFO Board Member notes that blog-related issues are broader than revealing company secrets.

“For example, can the employer regulate off-duty blogging because they believe the content injures the company’s reputation, is embarrassing to the company or disparages the company’s products, management or customers? There is intense debate over blogs, but no debate over the need to have clear blogging policies,” Beightol observed in a released statement.

“I think employers who ignore the impact of this are just courting legal disaster.” Jeffrey S. Hynes of Jeffrey S. Hynes & Associates

Privacy issues have also surfaced, with both employers and employees questioning the limitations.

“How can you distinguish between five minutes of work-related information with a few lines of possibly inappropriate discussion,” Hynes said. “I’ve had clients question what they can read if they suspect someone of stealing information.”

Hynes even found in some cases that after employee termination for potentially damaging blogging, company managers were similarly guilty for the same offenses.
“It’s a real catch-22 right now,” Hynes said.

Despite the lack of concrete policies, awareness is apparent according to the ELA poll. Of the 1,000 adults telephoned, with a variance of plus or minus 4 percent, the majority believed employers should be able to discipline or terminate workers who post damaging comments regarding the workplace or fellow co-workers.

The poll also revealed, of companies with blogging policies, 62 percent said the policy prohibited posting of any employer-related information and 60 percent said the policy discouraged employees from criticizing or making negative comments against the employer.

Not all work-related blogging is considered dangerous according to Scott Moss, Assistant Professor of Law at Marquette University Law School.

“In some cases, personal blogging can be a valuable public relations resource,” Moss said. “My dean actually encourages me to blog and I know several attorneys who strengthened their practices through blogging. It can be an asset to employers and employees. Blogging isn’t the problem; it’s the content that has raised concerns.”

Still, in the ELA poll, 58 percent of employees at business with blogging policies said regulations dealt with all blogging regardless of content which may further complicate the issue concerning elements of free speech.

“There isn’t a tremendous amount of protection for the employee especially since Wisconsin and 48 other states have employment at will, which allows anyone to be fired for any reason,” Moss said. “Even if there was alleged misconduct, with no policy intact, someone blogging about why Hillary Clinton would be a good president could be fired if their boss read it and disagreed.”